Frank Heckenbach wrote:
This adds to the complication if we don't even know who the authors are. Just hypothetically, suppose one of them now works for Borland, Microsoft or another such company, and they later decide to take an opportunity to crush competition (if they ever see it as such), or just for a PR stunt to display free software authors as "pirates" (not unheard of, see the SCO debacle and other indicents)
With all due respect, no. A work openly and widely distributed with full consent and knowledge of the authors, free of restriction, constitutes public domain. The only precedent in the courts for a work being the basis of a suit after it was freely distributed were where the author did not consent or did not know. For an author to go to court and try the argument that he/she changed his/her mind and now wants the rights back, is legally ridiculous and has never happened.
The SCO incident involved code that SCO claimed was copied from software they never gave permission to copy, and did not freely distribute. In fact, SCO claimed that IBM had appropriated the code whose access was given to them with restrictions and turned over to Linux developers. They lost. The court ruled that SCO had no such copyrights, but that they were owned by Novell, which declined to back the suit. Nowhere was any material widely and freely released involved.
As proof of what constitutes public domain, there is the Berne convention itself, the text of which is freely distributed, without any sort of notification of its' status as a public domain work. If the Berne convention did not consider its own text to be public domain, then how would anyone know what is in it?
My late friend and lawyer advised me on the matter, and confirmed that all that is required to be considered a public domain work is that a document has been distributed with the authors knowledge (not even consent) without charge or restriction. Any case before the court would turn around the fact of whether or not the author knew it was being distributed, not even if he/she consented, i.e., knowingly doing nothing about its distribution also constitutes public domain.
Pascal-P meets all the requirements of public domain. The authors, who were not paid for the work, released it without pay or restriction, and with their consent and full knowledge. Further, almost 40 years of precedence exists where the code was distributed over and over again without complaint from the authors. The reason the original code bore no such notice is that it was written in a time when the authors saw no need for such a note.
Having text within the work does not improve this situation. Any claim or statement on the text could have been faked, or demanded at gunpoint, etc., if you want to be very technical. A court would not absolve you of guilt if you read a release of rights on a document that was not true, any more than it would hold you innocent of theft charges from breaking and entering a house if someone had placed a "free stuff" sign on the door.
Again, with due respect, none of this is the issue with respect to GNU and GPC. GNU wishes to produce software that cannot be legally used for paid work, or the basis for paid work. I respect that. I would agree that passing any software to the GNU group that has been derived in any way, shape or form from public domain work would probably be politically impossible. GNU does not want PD software or to support it, they wish software restricted from commercial use. I respect authors rights completely. If the authors wish the user to jump on one leg while using the software, I support that (I doubt its legality, but that is another matter).
However, the status of P5 as public domain does not restrict its being covered by the GPL (indeed, public domain gives no restrictions whatever). The only issue vs. the GPL is that anyone could use the public domain parts of the code without falling under GPL restrictions. Indeed, they could simply get the code elsewhere and avoid even visiting a GNU distribution point.
The GPL would cover only the changes in the code. However, during the adaption of the code to GPC purposes, it would be changed in such detail as to be useless outside of its GPL covered sections. In any case, there would be little incentive, since the entirety of the non-GPL code could be found elsewhere.
Scott Moore